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Two Gitmo cases to watch at the Supreme Court

June 2, 2017

Noor Zafar,

CCR has long called for an end to the military commissions system at Guantánamo, a second-class system of justice designed to hide brutal torture committed by the U.S., and a proven failure, substantively and procedurally. Of the nearly 800 people who have been imprisoned at Guantánamo since 2002, only 8 have been convicted of a crime and most of those convictions have been overturned on appeal in federal courts.

The central question in Bahlul is whether the military commissions can be used to prosecute civilians for offenses that do not violate the international laws of war. Bahlul was convicted by military commission of three domestic offenses, two of which were thrown out on appeal. The third charge, conspiracy, was upheld, but by a divided lower court. Bahlul asks the Supreme Court to clarify once and for all whether military commissions have jurisdiction to try domestic offenses.

CCR’s brief in Bahlul clarifies the law governing international armed conflict and non-international armed conflict, emphasizing that there is a longstanding distinction between “combatant” and “civilian” status and highlighting the government’s deliberate blurring of this distinction to the detriment of Guantánamo detainees. The government cherry-picks which rules of international and non-international armed conflict it wants to apply to Guantánamo detainees such as Bahlul. This approach is outcome determinative, ensuring that the detainee always loses.

Because the Supreme Court ruled in Hamdan v. Rumsfeld that the conflict with al-Qaeda (in connection with which Bahlul is being prosecuted and detained) is a non-international armed conflict, we argue that Bahlul must be afforded civilian status and tried in domestic court, or not at all.

Nashiri is a capital case involving prosecution by military commission for attacks against the USS Cole in 2000. The central question is whether the military commissions, which were created after September 11, 2001, have jurisdiction to try offenses committed before then, when the U.S. was not officially at war with al-Qaeda. Rather than answer this question, the lower court abstained from ruling on the issue. Nashiri petitioned the Supreme Court to hear the case, arguing that, for a variety of reasons, abstention by the lower court was not appropriate.

CCR’s brief in Nashiri, filed on behalf of Alberto Mora, former General Counsel of the Navy,states that abstention by the lower court is not appropriate because Nashiri was repeatedly tortured while in U.S. custody and principles of equity require that the court rule on his case. Nashiri was captured in 2002 and held for four years in various secret CIA prisons known as “black sites.” While in CIA custody, he was subjected to repeated waterboarding and sleep and sensory deprivation. He was regularly beaten and often deprived of food for days on end, forced into stress positions, and habitually strung up on a wall overnight. So brutal was his torture that the Polish government, which operated a black site and was complicit in Nashiri’s torture and rendition, granted him victim status as a result of a landmark judgment in the European Court of Human Rights acknowledging Nashiri’s torture and ordering the U.S. government to pay him reparations.

The military commissions are convened under the authority of the Executive Branch, which is responsible for Nashiri’s detention and torture. Therefore, ultimate adjudication of Nashiri’s case cannot be left up to the Executive. The Judicial Branch must step in as a neutral arbiter and hear his case. Indeed, this judicial review is required if the Supreme Court’s ruling in Boumediene v. Bush, which affirmed the judiciary’s role in reviewing Guantánamo detention cases, is to have any meaning.

The Supreme Court has not taken a Guantanamo case since 2007. If the Court grants these petitions, it’s possible the military commissions may unravel once and for all.